NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

TODD JAMES RISNER, Appellant.

No. 1 CA-CR 17-0174

Appeal from the Superior Court in Maricopa County

No. CR2016-129773001

The Honorable Mark H. Brain, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Jason Lewis

Counsel for Appellee

Maricopa County Legal Defender’s Office, Phoenix

By Cynthia D. Beck

Counsel for Appellant

FILED 12-21-2017
STATE v. RISNER

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in 

which Judge Jon W. Thompson and Judge Jennifer M. Perkins joined.

J O N E S, Judge:

¶1 Todd Risner appeals his conviction and sentence on one count 

of disorderly conduct, a domestic violence offense, arguing only that he 

received an unfair trial by virtue of prosecutorial misconduct. For the 

following reasons, we affirm.

FACTS1 AND PROCEDURAL HISTORY

¶2 In June 2016, Risner got into a verbal altercation with his 

husband. As the argument escalated, Risner retrieved a knife from the 

kitchen and slammed it on the dining room table with sufficient force to 

break the thick glass top. The investigating officer did not record his 

interview with Risner but testified at trial that Risner admitted obtaining 

the knife and slamming his fist onto the glass tabletop. Risner was

thereafter indicted on one count of aggravated assault.

¶3 During cross-examination, Risner’s counsel questioned the 

investigating officer regarding his decisions not to tape record the interview 

and not to impound or test the knife, and identified certain facts the officer 

believed were in his report but were not. On redirect, the officer testified, 

without objection, that falsifying reports and evidence “would be 

dishonorable for one thing and I could lose my job, [my] pension could be 

at stake, [and] any credibility I have in court at any future case, it’s done.”

¶4 In his closing, Risner’s counsel argued the State failed to meet 

its burden of proof in light of purported deficiencies in the investigation 

and discrepancies between the investigating officer’s recollection of the 

events and his written report. In rebuttal, the State argued, again without 

objection:

 

1 “We view the facts in the light most favorable to sustaining the 

convictions with all reasonable inferences resolved against the defendant.” 

State v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (quoting State v. 

Valencia, 186 Ariz. 493, 495 (App. 1996)).
STATE v. RISNER

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3

[Risner] admitted to police that night it was a knife that he 

used. So [defense counsel is] essentially sitting here asking 

you to find his client to be a liar, and therefore it’s reasonable 

doubt. And why, well, how does he get around it, he says, 

oh, Officer V[.], well, he didn’t record the conversation and so 

maybe he’s not being truthful with you. Really? Do you 

really believe that? This officer, sworn to protect the citizens 

of our county, would lose his pension, would lose everything 

he has with the Phoenix Police Department, him and his 

family would lose that income, he would potentially be 

prosecuted by my office for potentially perjury, every case 

he’s ever been worked on would be called into question based 

on that type of action. For what? Why would he do that? For 

this guy? To — to — what ax does he have to grind against 

this defendant? Zero. He has no skin in the game. Absolutely 

none. He’s out there responding to calls. And on that day in 

June he showed up and he responded to the call and he did 

his job.

¶5 The jury convicted Risner of the lesser-included offense of 

disorderly conduct, determined it was a domestic violence offense, and 

found the State had proved the offense involved the discharge, use, or 

threatened exhibition of a deadly weapon or dangerous instrument. Risner 

was sentenced as a dangerous, non-repetitive offender to one-and-a-half 

years’ imprisonment and given credit for forty-one days’ presentence 

incarceration. Risner timely appealed, and we have jurisdiction pursuant 

to Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1),2 13-4031,

and -4033(A)(1).

DISCUSSION

¶6 To prevail on a claim of prosecutorial misconduct, a 

defendant must prove: “(1) misconduct is indeed present; and (2) a 

reasonable likelihood exists that the misconduct could have affected the 

jury’s verdict, thereby denying defendant a fair trial.” State v. Ramos, 235 

Ariz. 230, 237, ¶ 22 (App. 2014) (quoting State v. Moody, 208 Ariz. 424, 459, 

¶ 145 (2004)). Additionally:

Prosecutorial misconduct “is not merely the result of legal 

error, negligence, mistake, or insignificant impropriety, but, 

 

2 Absent material changes from the relevant date, we cite a statute’s 

current version.
STATE v. RISNER

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taken as a whole, amounts to intentional conduct which the 

prosecutor knows to be improper and prejudicial, and which 

he pursues for any improper purpose with indifference to a 

significant resulting danger of mistrial or reversal.” 

Id. (quoting Pool v. Superior Court, 139 Ariz. 98, 108-09 (1984)). Prosecutorial 

misconduct occurs where the prosecutor: (1) “places the prestige of the 

government behind its evidence,” or (2) “suggests that information not 

presented to the jury supports the evidence.” State v. Newell, 212 Ariz. 389, 

402, ¶ 62 (2006) (quoting State v. Vincent, 159 Ariz. 418, 423 (1989)). Risner 

argues the prosecutor’s statements eliciting testimony on redirect and in his 

closing argument fall into both categories.

¶7 Because Risner did not object to the testimony and argument 

in the trial court, we review for fundamental error. State v. Morris, 215 Ariz. 

324, 335, ¶ 47 (2007) (citing State v. Roque, 213 Ariz. 193, 228, ¶ 154 (2006)). 

To prevail under this standard of review, Risner must establish: (1) error 

occurred; (2) the error was fundamental; and (3) the error caused him 

prejudice. State v. Henderson, 210 Ariz. 561, 567, ¶ 20 (2005).

¶8 Risner first argues the prosecutor committed misconduct 

when he elicited testimony from the investigating officer regarding the 

consequences of falsifying reports or testimony. Risner argues, without 

meaningful explanation or supporting legal authority, that “[b]y 

referencing police department policies, the prosecutor bolstered [the 

officer]’s credibility with the prestige of that government institution.” We 

find no error. The mere fact that a peace officer is a State employee and 

bound by departmental policies does not create any inference that he is 

more or less credible than another witness; indeed, the jury was specifically 

instructed to evaluate a peace officer’s testimony the same as it would any 

other witness, and we presume it followed those instructions. See State v. 

Peraza, 239 Ariz. 140, 146, ¶ 23 (App. 2016) (citing Newell, 212 Ariz. at 403, 

¶ 68). Moreover, this argument is not supported by the record; no 

testimony or argument references police department policies.

¶9 Risner also argues the prosecutor vouched for the 

investigating officer’s testimony in his rebuttal by referencing a “sworn 

duty” imposed by the government and the “prospect of perjury” to be 

prosecuted by the government. He further contends that the prosecutor’s 

rebuttal improperly referenced facts not in evidence, namely that: (1) the 

investigating officer was “sworn to protect the citizens of the county,” 

(2) the officer would lose income if he falsified information, and (3) the 

officer would be subject to a perjury charge if he falsified information.
STATE v. RISNER

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¶10 We do not interpret the prosecutor’s rebuttal argument as 

vouching in any respect. First, the purported “facts not in evidence” are 

simply inferences that can fairly be drawn from the officer’s testimony that 

an act of dishonesty could end his career and a common-sense 

understanding of both law enforcement’s role in society, and the general

effects of dishonest behavior. “The prosecuting attorney in closing 

argument is permitted to comment on the evidence and to argue reasonable 

inferences therefrom.” State v. Jones, 109 Ariz. 378, 380 (1973) (citing State v. 

Propp, 104 Ariz. 466, 468 (1969)). The jury was properly instructed to use 

their common sense, see State v. Gustafson, 233 Ariz. 236, 262-63, ¶ 13 (App. 

2013) (citing State v. McLoughlin, 133 Ariz. 458, 461 n.2 (1982), and State v. 

Manning, 224 N.W.2d 232, 236 (Iowa 1974)), and “[t]he remarks in the 

prosecutor’s closing argument served only to call the attention of the jurors 

to matters which they were justified in considering in determining their 

verdict,” Jones, 109 Ariz. at 380 (citing State v. Randolph, 99 Ariz. 253, 257 

(1965)). See also State v. McCall, 139 Ariz. 147, 158-59 (1983) (concluding 

testimony “that the witness had no motive to testify falsely” was not 

improper vouching).

¶11 Second, Risner defended the charges based upon purported 

deficiencies in the investigation and discrepancies in the officer’s testimony. 

“Criticism of defense theories and tactics is a proper subject of closing 

argument.” Ramos, 235 Ariz. at 238, ¶ 25 (quoting United States v. Sayetsitty, 

107 F.3d 1405, 1409 (9th Cir. 1997)). We cannot say the prosecutor’s 

comments did more than criticize the plausibility of Risner’s chosen 

defense.

¶12 Finally, while a prosecutor cannot “convey his personal belief 

about the credibility of a witness,” State v. Lamar, 205 Ariz. 431, 441, ¶ 54 

(2003) (citing State v. White, 115 Ariz. 199, 204 (1977)), he may certainly 

comment on a witness’s bias or prejudice, or lack thereof, see, e.g., State v. 

Herrera, 203 Ariz. 131, 137, ¶ 17 (App. 2002); State v. Nilsen, 134 Ariz. 433, 

435 (App. 1982). Additionally, this Court has already held that “the 

prosecutor’s rhetorical questions to the jury ‘What motive would the police 

have to lie in a case like this?’ and ‘What motive would they have to lie or 

fabricate any evidence?’ did not rise to the level of misconduct,” even where 

the comments mischaracterized the defendant’s argument as an attack on 

their credibility, where, as here, the jury was instructed that closing 

arguments are not evidence. Ramos, 235 Ariz. at 238, ¶¶ 29-30; see also 

Lamar, 205 Ariz. at 441-42, ¶ 54 (“Arizona courts have held that an 

instruction explaining to the jury that lawyers’ arguments are not evidence 

has ameliorated instances of prosecutorial vouching more egregious than 

occurred here.”) (collecting cases).
STATE v. RISNER

Decision of the Court

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¶13 “The touchstone . . . in cases of alleged prosecutorial 

misconduct is the fairness of the trial, not the culpability of the prosecutor.” 

Smith v. Phillips, 455 U.S. 209, 219 (1982). On this record, Risner has not 

shown any reasonable likelihood the prosecutor’s statements could have 

affected the jury’s verdict or otherwise deprived him of a fair trial. He 

therefore has not proven reversible error.

CONCLUSION

¶14 Risner’s conviction and sentence are affirmed.